Summary: Mrs X complained the Council failed to meet statutory deadlines to finalise her daughter’s Education Health and Care Plan (EHCP) and communicated poorly. Mrs X said this caused considerable distress and uncertainty. We find fault and recommend the Council apologise, make a payment to Mrs X, and take action to prevent recurrence.

The complaint

1. Mrs X complains the Council has repeatedly failed to meet statutory deadlines to finalise her daughter, Y’s, EHCP and communication has been poor throughout. Mrs X says this has caused her a lot of stress and means she has not been able to arrange Y’s transition to secondary education as she otherwise would have.

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What I have investigated

2. I have investigated the delays in issuing Y’s EHCP and the Council’s communication with Mrs X.
3. I have not investigated issues with the process of Y transferring to secondary education. I have explained why at the end of this decision.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
7. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I discussed the complaint with Mrs X and considered the information she provided.
9. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
10. I considered the SEND Code of Practice, the Children and Families Act 2014, and the following Ombudsman’s focus reports:
• ‘Education, Health and Care Plans: our first 100 investigations’ published in October 2017.
• ‘Not going to plan? Education, Health and Care Plans two years on’ published in October 2019.
11. Mrs X and the Council had an opportunity to comment on a draft decision and I considered any comments before making this final decision.

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What I found

Education, health and care plans

12. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can so this.
13. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (the Code) sets out the process for carrying out Education and Health Care (EHC) assessments and producing EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• Where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment
• The process of assessing needs and developing EHCPs “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• The whole process from the point when an assessment it requested until the final EHCP is issued must take no more than 20 weeks.
• As part of the assessment, councils must gather advice from relevant professionals. This includes psychological advice and information from an Educational Psychologist.
14. The Code says councils must review EHCPs at least annually.
15. Councils have four weeks from the review meeting to decide whether to maintain or amend the EHCP. They must present proposed changes to parents with an opportunity to comment and begin any amendments without delay.
16. Where the young person is due to transition from primary to secondary education, the council should review the EHCP and issue a final amended plan by 15 February, before the transition in September.
17. Councils should also tell parents they have a right to appeal the final EHCP to the SEND Tribunal.

Principles of Good Administrative Practice

18. In 2018, the Ombudsman published a document setting out principles of good administrative practice and what we expect to see from Councils.
19. This document recommends councils explain and respond to any delays. It also recommends councils deal with people helpfully, promptly, and sensitively, taking account of their personal circumstances.

What happened

20. On 19 May 2021 the Council received a request for an EHC assessment for Y from her school.
21. The Council wrote to Mrs X on 9 June – three weeks later – to confirm it would carry out an EHC needs assessment. The Council confirmed the name and contact details of Mrs X’s EHC case co-ordinator, asked for Mrs X’s views and said it would make a decision on whether to issue an EHCP by 7 September.
22. That same day, the Council’s Education Panel discussed Y’s request and asked for advice from its Education, Health and Social Care department. It asked for responses by 21 July, but this deadline was missed.
23. Mrs X complained to the Council on 18 August 2021. She explained:
• She was disappointed Y had not yet seen an Educational Psychologist and she had been told it could take up to three months before the Council decided
• The delays contravene the SEND Code of Practice, the Children and Families Act, and SEND Regulations
• The delays meant Y had to continue in an unsuitable school setting
24. On 31 August an Educational Psychologist contacted Mrs X to arrange a time to assess Y’s needs.
25. The Council responded to Mrs X’s complaint on 6 September. It explained:
• It had agreed to carry out an EHC needs assessment within three weeks of the request and requested statutory advice. It was sorry for the delay in getting the advice, but the Educational Psychologist had now been in touch with Mrs X.
• It believed it had completed its duties in line with the timelines set out in the SEND Code of Practice.
• It was sorry for not having returned a call Mrs X had made.
• It would make a decision on whether to issue an EHCP on or before 8 September, within 16 weeks of the original request.
• If the Council agreed to issue an EHCP, it would have until 6 October to finalise this.
26. The Council received the education advice it had requested on 21 September.
27. On 30 September the education panel discussed Y’s case. The Council sent a letter to Mrs X that day explaining:
• It would issue an EHCP for Y
• It believed a mainstream school could meet Y’s needs and the EHCP would provide funds to help the school with this
• It would shortly send Mrs X a draft EHCP and allow her time to comment on this
28. On 5 October Mrs X emailed the Council and asked it to escalate her complaint to the next stage of its process. She explained it was now clear she had been correct in her original complaint and the Council had missed the statutory deadlines.
29. The Council missed the deadline of 6 October to finalise Y’s EHCP. The Council sent a first draft to Mrs X on 13 October. Mrs X provided comments and the Council issued a second draft on 21 October. Following further comments, the Council issued a final EHCP on 1 November – almost four weeks after the deadline.
30. As Y was due to move to secondary school in September, the Council began consulting with schools on 14 January 2022 with a view to issuing a new EHCP. It also decided to increase the funding on Y’s EHCP.
31. The Council responded to Mrs X’s complaint at the second stage of its complaints process on 31 January. It agreed it had failed to meet statutory timescales during Y’s EHC needs assessments. Specifically:
• It did not meet the 21 July 2021 deadline to receive information until 9 September 2021. This was because capacity issues meant an Educational Psychologist could not be allocated until 24 August 2021.
• It did not meet the 8 September 2021 deadline to decide whether to issue an EHCP until 21 September 2021. This was a consequence of the Educational Psychologist’s report not being available until 9 September 2021 and the case not being discussed at the education panel until 21 September 2021.
• It did not meet the 6 October 2021 deadline for a final EHCP to be issued until 1 November 2021.
32. The Council explained it was sorry for the delays and the inconvenience this had caused Mrs X and her family. The Council explained it had improved its service to prevent a recurrence of this. Specifically, it had:
• Increased staff capacity in its Special Educational Needs Monitoring and Assessment Service (SENMAS) and Education Psychology Service
• Increased management oversight of EHC needs assessment cases
• Supported EHC needs assessment timeliness with trackers that are reviewed and updated weekly
33. The Council explained Mrs X was now free to contact the Ombudsman.
34. The Council and Mrs X then corresponded regarding Y’s EHCP ahead of her transfer to secondary school.
35. The Council has told us:
• It is sorry for the failures relating to Y’s EHC needs assessment and her phase transfer, and for the delays.
• It is sorry the communication Mrs X has had with its SENMAS team has not been positive and for using an old address.
• It will send Mrs X and Y a formal written apology.
• It would like to offer Mrs X £250 in recognition of the stress this has caused her.
• It would like to offer a further £250 to recognise the impact this situation has had on Y.
• It has identified and implemented a number of processes to improve its EHCP process. This includes increased staff capacity, increased management oversight, timeliness trackers, improved quality of information for key stakeholders in the process, and a SEND training and development programme.
• SENMAS will launch a communication pledge, committing it to listen to families and partners to ensure they have been understood and feel supported.
• A SENMAS phoneline will be available between 9.30am and 3.30pm each weekday.
• The SENMAS caseworkers are committed to working cooperatively with families in a person-centred and pro-active manner.
• A co-production charter is under development with key stakeholders and parents/carers.
• A SEND training and development programme is being developed, which will include learning about positive communication and relationships.
• SENMAS is now receiving constructive feedback from families and partners.
• Improvements have been made to prevent data breaches.
• The recent complaint Mrs X has raised around Y’s transfer to secondary school is currently under investigation.

Analysis

Statutory deadlines

36. The Council missed multiple statutory deadlines for finalising Y’s EHCP. Mrs X pointed out to the Council ahead of time that deadlines were likely to be missed, but despite this and assurances to the contrary, the Council still did not meet the relevant deadlines. This is fault and caused Mrs X distress and uncertainty.
37. The Council has now offered to pay a total of £500 to recognise the stress caused to Mrs X and the impact this has had on Y. I find this is a reasonable sum to recognise the distress and uncertainty caused.
38. The Council has also highlighted a number of ways it can improve its service to prevent recurrence of these issues. The Council has agreed to increase staff capacity and management oversight as well as bringing in timeliness trackers. It has also agreed to improve the quality of the information it provides everyone involved in the EHCP process and put a SEND training and development programme in place.
39. I find this is suitable action to prevent recurrence going forward.

Communication

40. Mrs X raised several concerns with the Council by email which were not addressed. The Council also failed to return calls from Mrs X, instead reverting to emails. This is fault and caused Mrs X further distress at a time when she was already worried about the EHCP process.
41. The Council has apologised the experience Mrs X has had communicating with SENMAS has not been a positive one. And it has outlined action to improve its services.
42. I find this is satisfactory action to improve the level of communication from SENMAS.

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Agreed action

43. To remedy the injustice identified above, I recommended the Council:
44. Within one month:
• Provide Mrs X and Y with a written apology for failing to meet statutory deadlines during the EHCP process and for the level of communication received.
• Pay Mrs X the £500 it has offered to recognise the distress and uncertainty caused to her and Y.
45. The Council has agreed to these recommendations.

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Final decision

46. I have completed my investigation and I find the Council at fault for failing to meet statutory deadlines and for the level of communication it provided. The Council has agreed to the remedy set out above and I am satisfied that is a suitable resolution to Mrs X’s complaint.

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Parts of the complaint that I did not investigate

47. Mrs X has complained the Council failed to meet statutory deadlines and issue a final EHCP for Y by 15 February 2022.
48. I have not investigated this part of Mrs X’s complaint as the Council has confirmed it is currently investigating this. If Mrs X remains unhappy once she receives a response from the Council she may be able to bring this complaint back to the Ombudsman.

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Investigator's decision on behalf of the Ombudsman